“The proceedings are illogical”- Kakwenza’s lawyers withdraw from case

Lawyers representing exiled Ugandan writer, Kakwenza Rukirabashaija have written to Buganda Road Chief Magistrates court informing it of their decision to withdraw from the case.

In a March, 21, 2023 joint letter, the lawyers including Eron Kiiza, Wanda Ronald Samuel and Nalukoola Luyimbaazi say Kakwenza instructed them to withdraw and stop making any appearances in court on his behalf in the matter before court.

“This was after the defence team alerted court on two occasions to respect the Constitutional Court judgement freezing all criminal proceedings of offensive communication vide section 25 of the Computer Misuse Act 2011 in vain,” the lawyers say.

“We regret to note that continuing the captioned unconstitutional proceedings offends logic, rule of law, due process and is undemocratic.”

The decision follows an earlier direction by Kakwenza to his lawyers to withdraw their services from the proceedings after the Constitutional Court earlier this year ruled that Section 25 of the Computer Misuse Act, 2011 which criminalized offensive communication was no longer an offence.

“Pursuant to this judgement, it is my understanding that any further proceedings in the aforementioned court would make us appear like acqulescent faineants kowtowing to their incorrigible madness. I understand other courts , as they should , are observing the said orders of the Constitutional Court. I cannot understand why the Buganda Road Chief Magistrates Court continues to preside over and elongate my persecution and harassment on charges which are not provided for in the law,” Kakwenza told his lawyers.

“Therefore, I am instructing you to immediately stop appearing in such proceedings and demand my passport back , then watch the court and state play and dance to their tune alone.”

Charges

The critical writer who is also the PEN Prize international writer of courage  for 2022 was slapped with  charges related to offensive communication contrary to section 25 of the Computer Misuse Act 2011 for allegedly abusing President Museveni and the Commander of Land Forces, Lt Gen Muhoozi Kainerugaba through social media.

“On December, 24, 2021, Kakwenza Rukirabashaija in the Kampala district willfully and repeatedly used his twitter handled  to disturb the peace of his excellency the president of Uganda General Yoweri Museveni with no purpose of legitimate communicate,” the charge sheet reads in part.

He was last year granted bail before he fled the country to  exile in Germany.

Earlier this year,  the Constitutional Court  ruled that the law on offensive communication is unconstitutional.

“I find that the impugned Section is unjustifiable as it curtails the freedom of speech in a free and democratic society. Secondly Section 25 of the Computer Misuse Act does not specify what conduct constitutes offensive communication. To that extent it does not afford sufficient guidance for legal debate. Thirdly it is vague, overly broad and ambiguous. Therefore, I find that the impugned section is inconsistent with and/or in contravention of Article 29 of the Constitution,” Justice Kakuru said in the lead judgement.

According to the court, in a democratic and free society, prosecuting people for the content of their communication is a violation of what falls within guarantees of freedom of expression  in a democratic society.

The court insisted that is unjustifiable for the freedom of speech to be curtailed in a free and democratic society like Uganda.

The justices said that the  United Human Right Committee stated that any limitation on freedom of expression must be absolutely  necessary and that  states are only permitted to prohibit it through criminal section only if there is  child ponography direct public incitement to  genocide, advocacy of national, racial, religious hatred  that constitutes incitement to discrimination, hostility or violence and incitement to terrorism but noted that none of the above is true with section 25 of the Computer Misuse Act.

The judges ruled that  in the circumstances, it is only prudent that the specific section of the law is outlawed.